BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 1077, AFSCME, AFL-CIO
Mr. Thomas Larsen, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Mr. Thomas Schroeder, Corporation Counsel, Rock County,
appearing on behalf of the Employer.
WRITTEN CONFIRMATION OF BENCH
The Union and Employer named above are parties to a 1998-1999
collective bargaining agreement which provides for final and
binding arbitration of certain disputes. The parties asked the
Wisconsin Employment Relations Commission to appoint an arbitrator
to resolve the grievance of Dean Markee regarding a safety payment.
The undersigned was appointed and held a hearing on June 15, 2001,
in Janesville, Wisconsin. The parties presented their evidence and
arguments, and the Arbitrator gave a bench decision, granting the
grievance. This document is a confirmation of that bench decision.
The Grievant, Dean Markee, was employed for many years at the
County's Highway Department until January 4, 2000, when he retired.
He made plans to retire in advance of that date, and actually moved
to Arizona sometime in November of 1999, but stayed on the County's
payroll by using up accumulated paid time off. He intended to quit
on January 1, 2000, but miscalculated his accumulated time off, and
returned to work on December 27, 1999, for only one day. The
County worked with him to allow him to carry over his paid time off
into the year 2000 for pension purposes. The Grievant did not
actually work during January of 2000, but used paid time off on
January 3 and was officially terminated as of January 4, 2000.
The first paycheck covering the Grievant's final employment
was issued January 21, 2000. It did not include a $200 safety
equipment payment. There is some question as to when the Grievant
learned that the County did not intend to pay him for the year 2000
for safety equipment. He filed a grievance on February 23, 2000.
The County first argued that the grievance was not timely,
because the Grievant had 14 days to file a grievance. However, the
Arbitrator ruled that it is uncertain what date the Grievant knew
or should have known that the County's decision to not pay him was
intentional, since there were some inquiries initially as to
whether the matter was a mere oversight. Also, the County did not
raise the issue of timeliness at prior steps. For those reasons,
it is preferable that the grievance be decided on its merits.
The contract language at issue is in Section 19.01, which
Effective January 1, 1998, the Employer shall pay to each
employee a one-time annual payment $190.00, which will be increased
to $200.00 effective January 1, 1999. In return each employee
shall be required to wear approved safety glasses and safety shoes
during all working hours in accordance with posted work rules.
The County made an excellent argument regarding the inequity
of making a payment to a former employee who never actually worked
during the year of 2000, who had moved out of state several weeks
before January of 2000, and who only worked one day in December of
1999. Moreover, the County argued, the contract language calls for
a quid pro quo that an employee is required to wear approved
safety glasses and safety shoes during all working hours. The
Grievant was never present during 2000 to wear any safety
equipment. The County also noted that in the 1981 and 1982 labor
contracts, the parties used the term "employees of record" but
dropped that term after 1982. If the term were still used, the
County asserts, the Grievant was still an employee "of record" as
of January 3, 2000, and he would have a stronger claim. The
language now only refers to the word "employee."
Despite the equities involved, the Arbitrator agreed with the
Union that the contract does not call for any pro-ration of the
safety equipment payment, and there is no requirement that
employees work for any specific period of time in order to receive
it. While there is an obligation for employees to use safety
equipment, the Grievant was not actually at work to use it, and
there is no contention that the Grievant refused to wear safety
equipment when actually on the job. If an employee used vacation
or compensatory time off for the whole month of January, and then
resigned, the County would agree that he was entitled to the safety
equipment payment, even though he did not work during the year of
the payment. While a case like this one leaves the door open for
potential abuse, the parties can address that in future bargains.
The Arbitrator should not add to the contract and impose any
particular time to be worked to obtain the safety payment, where
the parties have not done so themselves. What
would be the time one would have to work? It would be an arbitrary
designation to impose some specific period of time now. Thus, the
contract language should be adhered to strictly, despite the
obvious inequity of it in this case.
The fact that the parties dropped the phrase "employees of
record" and left "employees" in its place has no effect in this
decision. The Grievant was an employee. He was also an employee
of record. He was in pay status. I find no meaningful distinction
between being an employee of record and an employee in determining
that he was entitled to the safety payment under Section 19.01.
The contract only demands that he be an employee. If an employee
were hired the week before, he would be an employee entitled to the
payment. The fact that the Grievant quit so shortly after the
start of the year and had not been at work for weeks does not
change the fact that he was an employee as of January 1, 2000 and
entitled to the safety payment, based on the language of Section
The grievance is sustained.
The County violated the collective bargaining agreement when it
failed to pay the Grievant the safety payment for the year 2000,
and it is ordered to pay him that safety allowance as soon as
Dated at Elkhorn, Wisconsin this 20th day of June, 2001.
J. Mawhinney, Arbitrator